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DulhIn Janak Nandini Kunwari Vs. Kedar NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1941All140
AppellantDulhIn Janak Nandini Kunwari
RespondentKedar NaraIn Singh
Excerpt:
- - before dealing with this argument i should like to mention one point. a court may issue an injunction under order 39, rule 1 and then, after the suit is transferred, the court to which it is transferred may have before it other applications of a like nature and a question may arise whether the injunction already issued should be withdrawn......at the request of b. kedar narain singh transferred the suit from the court of the additional civil judge of ballia to the court of the civil judge of benares. on 24th august 1939, dulhin janak kandini kunwari made another application to the additional civil judge at ballia in which she asserted that he still had jurisdiction, in spite of the order of transfer, to deal with the contempt of his injunction and prayed that he should pass orders on her previous application. the learned additional civil judge passed an order in which he held that he had no jurisdiction and it is this order which we are now asked to set aside.2. the learned additional civil judge mentioned incidentally that the order of transfer passed by this court contained observations which suggested that he no longer.....
Judgment:

Allsop, J.

1. This is an application requesting this Court to set aside in revision an order passed by the learned Additional Civil Judge of Ballia on 24th August 1939. The applicant, Dulhin Janak Nandini Kunwari was the plaintiff in a suit in which she sought a declaration of her title to the Ausanganj Estate which was under the management of the Court of Wards at Ghazipur. In the course of this suit she made an application for the appointment of a receiver upon the ground that the Court of Wards was about to deliver over the estate to the defendant, B. Kedar Narain Singh. The Court fixed a date on which it proposed to dispose of the application and passed an order on 25th March 1939, restraining the defendant from taking possession of the estate in the meantime. It was alleged by Dulhin Janak Nandini Kunwari that B. Kedar Narain Singh disobeyed this order by making an application to the Court of Wards under Section 10, Court of Wards Act, to release the estate in his favour and she applied to the Court on 15th April 1939 to punish him for contempt. No final order had been passed on Dulhin Janak Nandini Kunwari's application when on 4th August 1939, this Court at the request of B. Kedar Narain Singh transferred the suit from the Court of the Additional Civil Judge of Ballia to the Court of the Civil Judge of Benares. On 24th August 1939, Dulhin Janak Kandini Kunwari made another application to the Additional Civil Judge at Ballia in which she asserted that he still had jurisdiction, in spite of the order of transfer, to deal with the contempt of his injunction and prayed that he should pass orders on her previous application. The learned Additional Civil Judge passed an order in which he held that he had no jurisdiction and it is this order which we are now asked to set aside.

2. The learned Additional Civil Judge mentioned incidentally that the order of transfer passed by this Court contained observations which suggested that he no longer had jurisdiction. The order was passed by me and the reference is to a remark that the Court to which the suit was transferred would doubtless deal with the matter of contempt. I made that remark in reference to an argument that I should not transfer the suit because, if I did transfer it, B. Kedar Narain Singh would escape the consequences of his alleged disobedience of the injunction. I meant only to repel that argument on the ground that the transfer of the suit would not put an end to the proceedings for contempt. The question whether the transfer of the suit entailed the transfer of the contempt proceedings was not raised and I did not intend to decide it. The question is still open, although the learned Civil Judge acted quite properly in deferring to an apparent expression of opinion by this Court. It is argued on behalf of the applicant that it is only the Court which issued the injunction which can enforce it. Before dealing with this argument I should like to mention one point. It is doubtless convenient to speak of the proceedings to enforce the injunction as proceedings for contempt, but the terminology is not strictly accurate because the Court of the Additional Civil Judge was not a Court of record and had no power to punish anyone for contempt. He had power only to enforce his order in the manner prescribed by the rules made under the provisions of the Code of Civil Procedure.

3. The applicant's argument is based on Sub-rule (3) of Rule 2 of Order 39. In my judgment the sub-rule is not applicable because the injunction must have been issued under Rule 1 and not under Rule 2 of the order. I have no doubt that the provisions in Sub-rule (3) of Rule 2 must have been intended to apply to injunctions issued under that rule. If they had been intended to apply to injunctions issued under Rule 1, they would have been contained in a separate rule and not in a sub-rule. There is undoubtedly some authority for the applicant's contention that the provisions of Sub-rule (3) of Rule 2 apply to injunctions issued under Rule 1, but the question has apparently never come before a Court in quite the same way as it has come before us. The first case to which we were referred is the case in Ram Prasad Singh v. Benares Bank Limited ('19) 6 A.I.R. 1919 All. 20. The question at issue was whether the High Court could punish disobedience to its injunction. The learned Judges said that they had no doubt that the provisions of Order 39, Rule 2(3) would apply to an injunction which was not issued under Rule 2, but they also said that the Court in any case could punish under its wide powers as a Court of record and, therefore, the expression of opinion was not a definite ruling.

4. The next case is Adaikkala Thevan v. Imperial Bank, Madura ('26) 13 A.I.R. 1926 Mad. 574. The learned Judges there followed the ruling of this Court which I have just mentioned but gave no other reasons for their conclusion that the sub-rule did apply. In Muhammad Naziruddin v. Raja Ram ('35) 22 A.I.R. 1935 Pat. 274 a Single-Judge of the Patna High Court followed the two rulings which I have already mentioned rather than a ruling of a Single Judge of this Court in Balbhadar v. Balla : AIR1930All387 in which a contrary opinion was expressed. The learned Judge preferred to follow the authority of two benches rather than that of a Single Judge. Then in Krishnapur Mutt v. Vicar of Suruatkal Church ('18) 5 A.I.R. 1918 Mad. 340 it was held that a Court could, under the provisions of Order 39, Rule 2, Sub-rule (3), punish single acts of disobedience to an injunction, the ground being that there must be some method of 'enforcing an injunction. In Jang Bahadur v. Chhabila Koiri ('36) 23 A.I.R. 1936 Pat. 23 the opinion was again expressed that any injunction could be enforced under the provisions of Order 39, Rule 2 Sub-rule (3). The argument was that Rule 1 and Rule 2 reproduced Sections 492 and 493 of the previous Civil P.C., and under that Code injunctions issued under Section 492 could be enforced under the provisions of Section 493. It is to be noted, however, that in Section 493 it was expressly stated that punishment could be inflicted for breaches of injunctions under Section 493 and under Section 492, whereas in the present Sub-rule (3) of Rule 2 there is no reference-at all to Rule 1. Finally in Salam Chand v. Joogul Kissore : AIR1928Cal462 there was a dictum that all interim injunctions could be enforced under Order 39, Rule 2, Sub-rule (3).

5. It will be noticed that in these cases the question raised was either of no importance-because the powers to be exercised were-those of a Court of record, or the Courts in deciding the question merely purported to rely on authority, or the Courts were influenced by the impression which they had that there was no other means of enforcing an injunction. In A I E 1936 Pat 236 it was definitely pointed out that the interpretation which the Court was putting on Sub-rule (3) of Rule 2 was not the natural one. Jang Bahadur v. Chhabila Koiri ('36) 23 A.I.R. 1936 Pat. 23 it was held that proceedings under Order 39, Rule 2, Sub-rule (3) could not be transferred from one Court to another because it was only the Court which issued the injunction which could punish a breach of it under that sub-rule, but it was suggested that the Court to which the suit in the course of which the injunction had been issued had been transferred might be able to enforce the injunction under the provisions of Section 36 and Order 21, Rule 32, Civil P.C.

6. It has been argued before us that there is no reason to strain the meaning of Order 39, Rule 2, Sub-rule (3), if it is possible to enforce an injunction issued under Rule 1 under the provisions of Section 36 and Order 21, Rule 32. Section 36 lays down that the provisions of the Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders. Under Order 21, Rule 32, injunctions contained in decrees can be enforced in certain ways and it seems to me that it is obvious that injunctions contained in orders can be enforced in the same way. I think therefore that there is considerable force in the argument placed before us that the enforcement of injunctions issued under Order 39, Rule 1 should be under the provisions of Section 36 and Order 21, Rule 32, Civil P.C. If that is so, the provisions of Sub-rule (3) of Rule 2 of Order 39 would not apply and there would be no reason for holding that proceedings for the enforcement of the injunction should not be transferable to the Court which at the time was seized of the suit in the course of which the injunction was issued.

7. In my judgment it is in every way preferable that the enforcement of an injunction issued in the course of a suit should be in the hands of the Court which at the time is seized of the suit. After the transfer of the suit any new injunction could only be issued by the Court which was dealing with the suit and it is inadvisable that there should be two Courts which might deal with matters which are in effect identical. There is doubtless an element of punishment in the provisions for the enforcement of an injunction, but the main object surely is to see that the order of the Court is carried into effect. A Court may issue an injunction under Order 39, Rule 1 and then, after the suit is transferred, the Court to which it is transferred may have before it other applications of a like nature and a question may arise whether the injunction already issued should be withdrawn. The Court dealing with the suit would be the proper Court to decide whether the injunction should or should not be withdrawn. Both as a matter of principle and as a matter of the proper interpretation of the provisions of Order 39, Rule 2, Sub-rule (3), I think that that sub-rule should not apply to injunctions issued under Rule 1. I hold therefore that the proceedings for the enforcement of an injunction under Rule 1 are transferable under the provisions of Section 24, Civil P.C.

8. The question then arises whether the proceedings arising out of a suit are transferred when the suit is transferred. In my judgment, the transfer of a suit implies the transfer of all proceedings which arise out of the suit. Under the provisions of Section 37, the execution of a decree where the Court which passed the decree has ceased to have jurisdiction is vested in the Court which would have power to entertain the suit at the time when the application for the execution of the decree is presented. On the analogy of this rule it seems to me that a Court which has passed an interim order which requires execution ceases to have jurisdiction in the matter of enforcing the order when it ceases to have jurisdiction to deal with the suit and consequently that the power of enforcing the order lies in the Court which would deal with the interim proceeding if it began at that time. I hold therefore that the proper Court to enforce the execution of the interim injunction with which we are concerned is the Court in which the suit is now pending and I would therefore dismiss this-application in revision with costs.

Braund, J.

9. I agree.

10. This application is dismissed with costs.


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